114.005
Occupancy of principal dwelling of decedent by spouse and children. (1) Except as
provided in subsection (3) of this section, the spouse and dependent children
of a decedent occupying the principal dwelling of the decedent at the time of
the decedent’s death, or any of them, may continue to occupy the dwelling
until:

(a)
One year after the death of the decedent; or

(b)
If the decedent’s interest in the dwelling is a leasehold or otherwise less
than a fee interest, until one year after the death of the decedent or the
earlier termination of the interest.

(2)
During an occupancy under subsection (1) of this section:

(a)
The occupants may not commit or permit waste to the dwelling, or cause or
permit construction liens or other liens to attach to the dwelling.

(b)
The occupants shall pay the cost to keep the dwelling insured, to the extent of
the fair market value of the improvements, against fire and other hazards
within the extended coverage provided by fire insurance policies, with loss
payable to the estate.

(c)
The occupants shall pay taxes and improvement liens on the dwelling as payment
of the liens becomes due.

(d)
The dwelling is exempt from execution to the extent that the dwelling was
exempt when the decedent was living.

(e)
The dwelling is subject to the rights of persons having a security interest in
the dwelling.

(3)
For good cause shown, the court may waive or alter the provisions of subsection
(1) of this section. [1969 c.591 §103; 2017 c.169 §24]

114.010 [Repealed by 1969
c.591 §305]

114.015
Support of spouse and children. The court by order shall make necessary
and reasonable provision from the estate of a decedent for the support of the
spouse and dependent children of the decedent, or any of them, upon:

(1)
Petition therefor by or on behalf of the spouse or any dependent child;

(2)
Service of the petition and notice of hearing thereon to the personal
representative, unless the petitioner is the personal representative;

(3)
Notice to persons whose distributive shares of the estate may be diminished by
the granting of the petition, unless the court by order directs otherwise; and

(4)
Hearing. [1969 c.591 §104]

114.020 [Amended by 1955
c.69 §1; repealed by 1969 c.591 §305]

114.025
Petition for support and answer. (1) The petition for support under ORS
114.015 shall include a description of property, other than property of the
estate, available for the support of the spouse and children, and an estimate
of the expenses anticipated for their support. If the petitioner is the
personal representative, the petition shall also include, so far as known, a
statement of the nature and estimated value of the property of the estate and
of the nature and estimated amount of claims, taxes and expenses of
administration.

(2)
If the personal representative is not the petitioner, the personal
representative shall answer the petition for support. The answer shall include,
so far as known, a statement of the nature and estimated value of the property
of the estate and of the nature and estimated amount of claims, taxes and
expenses of administration. [1969 c.591 §105]

114.030 [Repealed by 1969
c.591 §305]

114.035
Temporary support.
Pending hearing upon the petition under ORS 114.015, temporary support may be
allowed by order of the court in an amount and of a nature the court considers
reasonably necessary for the welfare of the surviving spouse and dependent
children of the decedent or any of them. [1969 c.591 §106]

114.040 [Repealed by 1969
c.591 §305]

114.045
Modification or termination of support. Provision for support under ORS 114.015
ordered by the court may be modified or terminated by the court by further
order. [1969 c.591 §107]

114.050 [Repealed by 1969
c.591 §305]

114.055
Nature of support.
(1) Provision for support under ORS 114.015 ordered by the court may consist of
any one or more of the following:

(a)
Transfer of title to personal property.

(b)
Transfer of title to real property.

(c)
Periodic payment of moneys during administration of the estate, but the
payments may not continue for more than two years after the date of death of
the decedent.

(2)
The court, in determining provision for support, shall take into consideration
the solvency of the estate, property available for support other than property
of the estate, and property of the estate inherited by or devised to the spouse
and children. [1969 c.591 §108]

114.060 [Repealed by 1969
c.591 §305]

114.065
Limitations on support. If it appears to the court that after provision for
support under ORS 114.015 is made the estate will be insolvent, the provision
for support ordered by the court shall not exceed one-half of the estimated
value of the property of the estate, and any periodic payment of moneys so
ordered shall not continue for more than one year after the date of death of
the decedent. [1969 c.591 §109]

114.070 [1957 c.345 §1;
repealed by 1969 c.591 §305]

114.075
Priority of support; treated as administration expense. Subject to the
limitations imposed by ORS 114.065, provision for support under ORS 114.015
ordered by the court has priority over claims and expenses of administration.
The provision is not charged against the distributive share of the person
receiving support. The provision is treated as an expense of administration,
but not as a deduction for estate tax purposes. [1969 c.591 §110; 2011 c.526 §18]

114.085
Setting apart whole estate for support; termination of administration. If it appears,
after the expiration of four months after the date of the first publication of
notice to interested persons, that reasonable provision for support of the
spouse and dependent children of the decedent, or any of them, warrants that
the whole of the estate, after payment of claims, taxes and expenses of
administration, be set apart for such support, the court may so order. There
shall be no further proceeding in the administration of the estate, and the
estate shall summarily be closed. [1969 c.591 §111]

114.215
Devolution of and title to property. (1) Upon the death of a decedent, title
to the property of the decedent vests:

(a)
In the absence of testamentary disposition, in the heirs of the decedent,
subject to support of spouse and children, rights of creditors, administration
and sale by the personal representative; or

(b)
In the persons to whom it is devised by the will of the decedent, subject to
support of spouse and children, rights of creditors, right of the surviving
spouse to elect against the will, administration and sale by the personal
representative.

(2)
The power of a person to leave property by will, and the rights of creditors,
devisees and heirs to the property of the person, are subject to the
restrictions and limitations expressed or implicit in ORS chapters 111, 112,
113, 114, 115, 116 and 117 to facilitate the prompt settlement of estates.

(3)
Any animal of a value of less than $2,500 that belonged to the decedent and
that was kept by the decedent as a pet need not be listed on the inventory of
the estate. Any family member of the decedent, friend of the decedent or animal
shelter may take custody of the animal immediately upon the death of the
decedent. A family member, friend or animal shelter that takes custody of an
animal under this subsection is entitled to payment from the estate for the
cost of caring for the animal. A family member, friend or animal shelter that
takes custody of an animal under this subsection shall deliver the animal to
the personal representative for the decedent, or to any heir or devisee
entitled to possession of the animal, upon request of the personal
representative, heir or devisee. [1969 c.591 §120; 1999 c.675 §1]

114.220 [Repealed by 1969
c.591 §305]

114.225
Possession and control of decedent’s estate. A personal representative has a
right to and shall take possession and control of the estate of the decedent,
but the personal representative is not required to take possession of or be
accountable for property in the possession of an heir or devisee unless in the
opinion of the personal representative possession by the personal
representative is reasonably required for purposes of administration. [1969
c.591 §121]

114.230 [Repealed by 1969
c.591 §305]

114.240 [Repealed by 1969
c.591 §305]

114.250 [Repealed by 1969
c.591 §305]

DUTIES
AND POWERS OF PERSONAL REPRESENTATIVES

114.255
Commencement of duties and powers of personal representative; prior acts. The duties and
powers of a personal representative commence upon the issuance of the letters
of the personal representative. The powers of a personal representative relate
back in time to give the acts of the personal representative occurring prior to
appointment the same effect as those occurring thereafter. A personal
representative may ratify and accept acts on behalf of the estate done by
others where those acts would have been proper for a personal representative. [1969
c.591 §122]

114.260 [Repealed by 1969
c.591 §305]

114.265
General duties of personal representative. A personal representative is a
fiduciary who is under a general duty to and shall collect the income from
property of the estate in the possession of the personal representative and
preserve, settle and distribute the estate in accordance with the terms of the
will and ORS chapters 111, 112, 113, 114, 115, 116 and 117 as expeditiously and
with as little sacrifice of value as is reasonable under the circumstances. [1969
c.591 §123]

114.270 [Repealed by 1969
c.591 §305]

114.275
Personal representative to proceed without court order; application for
authority, approval or instructions. A personal representative shall proceed
with the administration, settlement and distribution of the estate without
adjudication, order or direction of the court, except as otherwise provided in
ORS chapters 111, 112, 113, 114, 115, 116 and 117. However, a personal
representative or any interested person may apply to the court for authority,
approval or instructions on any matter concerning the administration,
settlement or distribution of the estate, and the court, without hearing or
upon such hearing as it may prescribe, shall instruct the personal
representative or rule on the matter as may be appropriate. [1969 c.591 §124]

114.285
Naming or appointment of personal representative does not discharge claim. The naming or
appointment of any person as personal representative does not discharge any
claim which the decedent had against that person. The claim shall be included
in the inventory. If the person agrees to act as personal representative, the
person is liable for the claim as for so much money in the hands of the person
at the time the claim becomes due and payable; otherwise the person is liable
for the claim as any other debtor of the decedent. [1969 c.591 §125]

114.295
Discharge or devise in will of claim of testator. The discharge or
devise in a will of a claim of the testator against a personal representative
or against any other person is of no effect as against creditors of the
decedent. The claim shall be included in the inventory and for purposes of
administration shall be regarded and treated as a specific devise of the amount
of the claim. [1969 c.591 §126]

114.305
Transactions authorized for personal representative. Subject to the
provisions of ORS 97.130 (2) and (10) and except as restricted or otherwise
provided by the will of the decedent, a document of anatomical gift under ORS
97.965 or by court order, a personal representative, acting reasonably for the
benefit of interested persons, is authorized to:

(1)
Direct and authorize disposition of the remains of the decedent pursuant to ORS
97.130 and incur expenses for the funeral in a manner suitable to the condition
in life of the decedent. Only those funeral expenses necessary for a plain and
decent funeral may be paid from the estate if the assets are insufficient to
pay the claims of the Department of Human Services and the Oregon Health
Authority for the net amount of public assistance, as defined in ORS 411.010,
or medical assistance, as defined in ORS 414.025, paid to or for the decedent
and for care and maintenance of any decedent who was at a state institution to
the extent provided in ORS 179.610 to 179.770.

(4)
Complete, compromise or refuse performance of contracts of the decedent that
continue as obligations of the estate, as the personal representative may
determine under the circumstances. In performing enforceable contracts by the
decedent to convey or lease real property, the personal representative, among
other courses of action, may:

(a)
Execute and deliver a deed upon satisfaction of any sum remaining unpaid or
upon receipt of the note of the purchaser adequately secured; or

(b)
Deliver a deed in escrow with directions that the proceeds, when paid in
accordance with the escrow agreement, be paid to the successors of the
decedent, as designated in the escrow agreement.

(5)
Satisfy written pledges of the decedent for contributions, whether or not the
pledges constituted binding obligations of the decedent or were properly
presented as claims.

(6)
Deposit funds not needed to meet currently payable debts and expenses, and not
immediately distributable, in bank or savings and loan association accounts, or
invest the funds in bank or savings and loan association certificates of
deposit, or federally regulated money-market funds and short-term investment
funds suitable for investment by trustees under ORS 130.750 to 130.775, or
short-term United States Government obligations.

(7)
Abandon burdensome property when it is valueless, or is so encumbered or is in
a condition that it is of no benefit to the estate.

(8)
Vote stocks or other securities in person or by general or limited proxy.

(9)
Pay calls, assessments and other sums chargeable or accruing against or on
account of securities.

(10)
Sell or exercise stock subscription or conversion rights.

(11)
Consent, directly or through a committee or other agent, to the reorganization,
consolidation, merger, dissolution or liquidation of a corporation or other
business enterprise.

(12)
Hold a security in the name of a nominee or in other form without disclosure of
the interest of the estate, but the personal representative is liable for any act
of the nominee in connection with the security so held.

(13)
Insure the assets of the estate against damage and loss, and insure the
personal representative against liability to third persons.

(14)
Advance or borrow money with or without security.

(15)
Compromise, extend, renew or otherwise modify an obligation owing to the
estate. A personal representative who holds a mortgage, pledge, lien or other
security interest may accept a conveyance or transfer of the encumbered asset
in lieu of foreclosure in full or partial satisfaction of the indebtedness.

(16)
Accept other real property in part payment of the purchase price of real
property sold by the personal representative.

(17)
Pay taxes, assessments and expenses incident to the administration of the
estate.

(18)
Employ qualified persons, including attorneys, accountants and investment
advisers, to advise and assist the personal representative and to perform acts
of administration, whether or not discretionary, on behalf of the personal
representative.

(19)
Prosecute or defend actions, claims or proceedings in any jurisdiction for the
protection of the estate and of the personal representative in the performance
of duties as personal representative.

(20)
Prosecute claims of the decedent including those for personal injury or
wrongful death.

(21)
Continue any business or venture in which the decedent was engaged at the time
of death to preserve the value of the business or venture.

(22)
Incorporate or otherwise change the business form of any business or venture in
which the decedent was engaged at the time of death.

(23)
Discontinue and wind up any business or venture in which the decedent was
engaged at the time of death.

(24)
Provide for exoneration of the personal representative from personal liability
in any contract entered into on behalf of the estate.

114.315
Right to perfect lien or security interest. A personal representative has the
same rights to perfect a lien or security interest as the decedent would have
had if the decedent were living. [1969 c.591 §128]

114.320 [Repealed by 1969
c.591 §305]

114.325
Power to sell, mortgage, lease and deal with property. (1) Except as
provided in subsection (2) of this section, and subject to ORS 113.105, a
personal representative has power to sell, mortgage, lease or otherwise deal
with property of the estate without notice, hearing or court order.

(2)
Exercise of the power of sale by the personal representative is improper,
except after notice, hearing and order of the court, if:

(a)
The sale is in contravention of the provisions of the will; or

(b)
The property is specifically devised and the will does not authorize its sale. [1969
c.591 §129; 2017 c.169 §25]

114.330 [Repealed by 1969
c.591 §305]

114.333
Transfer of title and interest to real property by foreign personal
representative.
Upon performance of a recorded contract of sale of real property the foreign
personal representative of a deceased vendor whose estate is being administered
in a foreign jurisdiction may convey the title and interest of the vendor in
the property to the vendee or the assignee of the vendee upon recording in the
deed records of the county where the property is located a certified copy of
letters testamentary or of administration. The certificate shall include a
statement that the letters are in effect. [1973 c.506 §28]

114.335
Court order for sale, mortgage or lease. Upon proof satisfactory to the court by
an interested person that a sale, mortgage or lease of property of the estate
is required for paying support of spouse and children, elective share of surviving
spouse, claims or expenses of administration, or for distribution, and that the
personal representative has failed or declined to act, the court may order the
personal representative to make the sale, mortgage or lease. [1969 c.591 §130]

114.340 [Repealed by 1969
c.591 §305]

114.345
Title conveyed free of claims of creditors. Property sold, mortgaged or leased
by a personal representative is subject to liens and encumbrances against the
decedent or the estate of the decedent, but is not subject to rights of
creditors of the decedent or liens or encumbrances against the heirs or
devisees of the decedent. The filing and allowance of a claim in an estate
proceeding does not make the claimant a secured creditor. [1969 c.591 §131]

114.350 [Repealed by 1963
c.287 §1]

114.355
Sale or encumbrance to personal representative voidable; exceptions. (1) Any sale or
encumbrance to the personal representative, the spouse, agent or attorney of
the personal representative, or any corporation or trust in which the personal
representative has more than a one-third beneficial interest, is voidable
unless:

(a)
The transaction was consented to by all interested persons affected thereby; or

(b)
The will expressly authorizes the transaction by the personal representative;
or

(c)
The transaction was made in compliance with another statute or with a contract
or other instrument executed by the decedent.

(2)
The title of a purchaser for value without notice of the circumstances of the
transaction with the personal representative is not affected unless the
purchaser should have known of the defect in the title of the seller. [1969
c.591 §132]

114.360 [Repealed by 1963
c.287 §1]

114.365
Validation of certain sales. The following are the subject of
validating Acts:

(1)
Certain sales of decedent’s real property made prior to 1903 where confirmation
of sale was premature, validated by page 133, section 2, General Laws of Oregon
1903.

(2)
Certain sales of decedent’s property made prior to 1907 under power in will,
validated by chapter 175, General Laws of Oregon 1907.

(3)
Certain sales of decedent’s real property made prior to 1917 where publication
of the notice of sale was improper, validated by section 2, chapter 114,
General Laws of Oregon 1917.

114.375
Nonliability of transfer agents. A transfer agent or a corporation
transferring its own securities incurs no liability to any person by making a
transfer of securities of an estate as requested or directed by a personal
representative. [1969 c.591 §134]

114.385
Persons dealing with personal representative; protection. A person dealing
with or assisting a personal representative without actual knowledge that the
personal representative is improperly exercising the power of the personal
representative is protected as if the personal representative properly
exercised the power. The person is not bound to inquire whether the personal
representative is properly exercising the power of the personal representative,
and is not bound to inquire concerning the provisions of any will or any order
of court that may affect the propriety of the acts of the personal
representative. No provision in any will or order of court purporting to limit
the power of a personal representative is effective except as to persons with
actual knowledge of the provision or order. A person is not bound to see to the
proper application of estate assets paid or delivered to a personal
representative. The protection expressed in this section extends to a person
dealing with or assisting a personal representative appointed under ORS 113.085
without actual knowledge that the personal representative was not qualified as
provided in ORS 113.095 or that the appointment of the personal representative
involved procedural irregularity. [1969 c.591 §135; 2017 c.169 §52]

114.395
Improper exercise of power; breach of fiduciary duty. If the exercise
of power by a personal representative in the administration of an estate is
improper, the personal representative is liable for breach of fiduciary duty to
interested persons for resulting damage or loss to the same extent as a trustee
of an express trust. Exercise of power in violation of a court order is a
breach of duty. Exercise of power contrary to the provisions of the will may be
a breach of duty. [1969 c.591 §136]

114.405
Personal liability of personal representative. (1) The personal
liability of a personal representative to third parties, as distinguished from
fiduciary accountability to the estate, arising from the administration of the
estate is that of an agent for a disclosed principal.

(2)
A personal representative is not personally liable on contracts properly
entered into in the fiduciary capacity in the course of administration of the
estate unless the personal representative expressly agrees to be personally
liable.

(3)
A personal representative is not personally liable for obligations arising from
possession or control of property of the estate or for torts committed in the
course of administration of the estate unless the personal representative is
personally at fault.

(4)
Claims based upon contracts, obligations and torts of the types described in
subsections (2) and (3) of this section may be allowed against the estate
whether or not the personal representative is personally liable therefor. [1969
c.591 §137]

114.410 [Repealed by 1969
c.591 §305]

114.415
Copersonal representatives; when joint action required. (1) When two or
more persons are appointed copersonal representatives, the concurrence of all
is required for all acts connected with the administration and distribution of
the estate, except:

(a)
Any copersonal representative may receive and receipt for property due the
estate.

(b)
When the concurrence of all cannot readily be obtained in the time reasonably
available for emergency action.

(c)
Where any others have delegated their power to act.

(d)
Where the will provides otherwise.

(e)
Where the court otherwise directs.

(2)
Persons dealing with a copersonal representative who are actually unaware that
another has been appointed to serve with the person are as fully protected as
if the person with whom they dealt had been the sole personal representative. [1969
c.591 §138]

114.420 [Repealed by 1969
c.591 §305]

114.425
Discovery of property, writings and information. (1) The court may
order any person to appear and give testimony by deposition if it appears
probable that the person:

(a)
Has concealed, secreted or disposed of any property of the estate of a
decedent;

(b)
Has been entrusted with property of the estate of a decedent and fails to
account therefor to the personal representative;

(c)
Has concealed, secreted or disposed of any writing, instrument or document
pertaining to the estate;

(d)
Has knowledge or information that is necessary to the administration of the
estate; or

(e)
As an officer or agent of a corporation, has refused to allow examination of the
books and records of the corporation that the decedent had the right to
examine.

(2)
If a person cited as provided in subsection (1) of this section fails to appear
or to answer questions asked as authorized by the order of the court, the
person is in contempt and may be punished as for other contempts. [1969 c.591 §139;
1979 c.284 §106]

114.430 [Repealed by 1969
c.591 §305]

114.435
Power to avoid transfers. The property liable for the payment of expenses of
administration, funeral expenses, claims and taxes shall include property
transferred by the decedent with intent to defraud the creditors of the
decedent or transferred by any means which is in law void or voidable as
against the creditors of the decedent. The right to recover that property so far
as necessary for the payment of those expenses, claims and taxes is in the
personal representative, who shall take necessary steps to recover it. That
property constitutes general assets for the payment of creditors. [1969 c.591 §140]

114.440 [Repealed by 1969
c.591 §305]

SMALL
ESTATES

114.505
Definitions for ORS 114.505 to 114.560. As used in ORS 114.505 to 114.560:

(a)
If the decedent died intestate, the heir or heirs of the decedent, or if there
is no heir, an estate administrator of the Department of State Lands appointed
under ORS 113.235;

(b)
If the decedent died testate, the devisee or devisees of the decedent; and

(c)
Any creditor of the estate entitled to payment or reimbursement from the estate
under ORS 114.545 (1)(d) who has not been paid or reimbursed the full amount
owed such creditor within 60 days after the date of the decedent’s death.

114.515
Value of estate; where affidavit filed; fee; amended affidavit; supplemental
affidavit.
(1) If the estate of a decedent meets the requirements of subsection (2) of
this section, any of the following persons may file an affidavit with the clerk
of the probate court in any county where there is venue for a proceeding
seeking the appointment of a personal representative for the estate:

(a)
One or more of the claiming successors of the decedent.

(b)
If the decedent died testate, any person named as personal representative in
the decedent’s will.

(c)
The Director of Human Services, the Director of the Oregon Health Authority or
an attorney approved under ORS 114.517, if the decedent received public
assistance as defined in ORS 411.010, received medical assistance as defined in
ORS 414.025 or received care at an institution as defined in ORS 179.010, and
it appears that the assistance or the cost of care may be recovered from the
estate of the decedent.

(2)
An affidavit under this section may be filed only if:

(a)
The fair market value of the estate is $275,000 or less;

(b)
Not more than $75,000 of the fair market value of the estate is attributable to
personal property; and

(c)
Not more than $200,000 of the fair market value of the estate is attributable
to real property.

(3)
An affidavit under this section may not be filed until 30 days after the death
of the decedent.

(4)
An affidavit filed under the provisions of this section must contain the
information required in ORS 114.525 and shall be made a part of the probate
records. If the affiant is an attorney approved by the Director of Human
Services or the Director of the Oregon Health Authority, a copy of the document
approving the attorney must be attached to the affidavit.

(5)
In determining fair market value under this section, the fair market value of
the entire interest in the property included in the estate shall be used
without reduction for liens or other debts.

(6)
The clerk of the probate court shall charge and collect the fee established
under ORS 21.145 for the filing of any affidavit under this section.

(7)
Any error or omission in an affidavit filed under this section may be corrected
by filing an amended affidavit within four months after the filing of the
affidavit.

(8)
One or more supplemental affidavits may be filed at any time after the filing
of an affidavit under this section for the purpose of including property not
described in the original affidavit. Copies of all previously filed affidavits
must be attached to the supplemental affidavit and all information required in
ORS 114.525 must be reflected in the supplemental affidavit. A supplemental
affidavit may not be filed if by reason of the additional property described in
the supplemental affidavit any limitation imposed by subsection (2) of this
section is exceeded. [1973 c.710 §§3, 8; 1977 c.239 §2; 1979 c.467 §1; 1981
s.s. c.3 §36; 1985 c.368 §1; 1985 c.496 §6; 1987 c.586 §28; 1989 c.228 §2; 1989
c.856 §1; 1995 c.682 §1; 1997 c.447 §1; 1997 c.801 §32; 2003 c.737 §§59,60;
2005 c.122 §§1,2; 2005 c.273 §§1,2; 2005 c.702 §§69,70,71; 2009 c.262 §7; 2009
c.413 §1; 2009 c.828 §10; 2011 c.595 §22; 2013 c.688 §17]

114.517
Approval of attorneys filing affidavits for recipients of Medicaid or other
public assistance.
The Director of Human Services, or the director’s designated representative, or
the Director of the Oregon Health Authority, or the director’s designated
representative, may approve in writing attorneys who are eligible to file an
affidavit under ORS 114.515 if the decedent received public assistance as
defined in ORS 411.010, received medical assistance as defined in ORS 414.025
or received care at an institution as defined in ORS 179.010, and it appears
that the assistance or the cost of care may be recovered from the estate of the
decedent. An attorney approved under this section does not represent the
Director of Human Services or the Director of the Oregon Health Authority when
the attorney files an affidavit under ORS 114.515. [2009 c.262 §6; 2009 c.828 §9;
2013 c.688 §18]

114.520
Authorization from Department of State Lands required for filing of affidavit
by creditor if decedent dies intestate and without heirs; rules. (1) If a decedent
dies intestate and without heirs, a creditor of an estate who is a claiming
successor may not file an affidavit under ORS 114.515 unless the creditor has
received written authorization from an estate administrator of the Department
of State Lands appointed under ORS 113.235. Except as provided by rule adopted
by the Director of the Department of State Lands, an estate administrator shall
consent to the filing of an affidavit under ORS 114.515 by a creditor only if
it appears after investigation that the estate is insolvent.

(2)
A creditor of an estate who is subject to subsection (1) of this section may
give written notice to an estate administrator of the Department of State Lands
informing the estate administrator that the creditor intends to file an
affidavit under ORS 114.515. Upon receiving the notice permitted by this
subsection, the estate administrator shall investigate the assets and
liabilities of the estate. Within 30 days after receiving the notice required
by this subsection, the estate administrator shall either:

(a)
Give written authorization to the creditor for the filing of an affidavit by
the creditor under ORS 114.515; or

(b)
Inform the creditor that the Department of State Lands will file an affidavit
as claiming successor under ORS 114.515.

(3)
If a decedent dies intestate and without heirs, a creditor of an estate who is
a claiming successor and who files an affidavit under ORS 114.515 must notate
at the top of the affidavit that the affidavit is being filed by a creditor of
the estate. If the affidavit contains the notation required by this subsection,
the clerk of the probate court may not accept the affidavit for filing unless
there is attached to the affidavit written authorization for the filing of the
affidavit by the creditor from an estate administrator of the Department of
State Lands. The written authorization may be a copy of a memorandum of an
interagency agreement between the Department of State Lands and another state
agency. [1997 c.88 §2; 2003 c.395 §15]

(1)
State the name, age, domicile, post-office address and Social Security number
of the decedent;

(2)
State the date and place of the decedent’s death. A certified copy of the death
record must be attached to the affidavit;

(3)
Describe and state the fair market value of all property in the estate,
including a legal description of any real property;

(4)
State that no application or petition for the appointment of a personal
representative has been granted in Oregon;

(5)
State whether the decedent died testate or intestate, and if the decedent died
testate, the will must be attached to the affidavit;

(6)
List the heirs of the decedent and the last address of each heir as known to
the affiant, and state that a copy of the affidavit showing the date of filing
and a copy of the will, if the decedent died testate, will be delivered to each
heir or mailed to the heir at the last-known address;

(7)
If the decedent died testate, list the devisees of the decedent and the last
address of each devisee as known to the affiant and state that a copy of the
will and a copy of the affidavit showing the date of filing will be delivered
to each devisee or mailed to the devisee at the last-known address;

(8)
State the interest in the property described in the affidavit to which each
heir or devisee is entitled and the interest, if any, that will escheat;

(9)
State that reasonable efforts have been made to ascertain creditors of the
estate;

(10)
List the expenses of and claims against the estate remaining unpaid or on
account of which the affiant or any other person is entitled to reimbursement
from the estate, including the known or estimated amounts of the expenses and
claims and the names and addresses of the creditors as known to the affiant,
and state that a copy of the affidavit showing the date of filing will be
delivered to each creditor who has not been paid in full or mailed to the
creditor at the last-known address;

(11)
Separately list the name and address of each person known to the affiant to
assert a claim against the estate that the affiant disputes and the known or
estimated amount of the claim and state that a copy of the affidavit showing
the date of filing will be delivered to each such person or mailed to the
person at the last-known address;

(12)
State that a copy of the affidavit showing the date of filing will be mailed or
delivered to the Department of Human Services or to the Oregon Health
Authority, as prescribed by rule by the department or authority;

(13)
State that claims against the estate not listed in the affidavit or in amounts
larger than those listed in the affidavit may be barred unless:

(a)
A claim is presented to the affiant within four months of the filing of the
affidavit at the address stated in the affidavit for presentation of claims; or

(b)
A personal representative of the estate is appointed within the time allowed
under ORS 114.555; and

(14)
If the affidavit lists one or more claims that the affiant disputes, state that
any such claim may be barred unless:

(a)
A petition for summary determination is filed within four months of the filing
of the affidavit; or

114.535
Transfer of decedent’s property to affiant; proceedings to compel transfer. (1) Not sooner
than 10 days after the filing of an affidavit under ORS 114.515, the affiant
may deliver a certified copy of the affidavit to any person who was indebted to
the decedent or who has possession of personal property belonging to the
estate. Except as provided in this section, upon receipt of the copy, the
person shall pay, transfer, deliver, provide access to and allow possession of
the personal property to the affiant.

(2)
Subject to ORS 114.537, if a copy of an affidavit is delivered under subsection
(1) of this section to a person that controls access to personal property
belonging to the estate of the decedent, including personal property held in a
safe deposit box for which the decedent was the sole lessee or the last
surviving lessee, the person shall:

(a)
Provide the affiant with access to the decedent’s personal property; and

(b)
Allow the affiant to take possession of the personal property.

(3)
Subject to ORS 114.537, if a copy of an affidavit is delivered under subsection
(1) of this section to a person who has received property of the decedent under
ORS 446.616, 708A.430, 723.466 or 803.094, or a similar statute providing for
the transfer of property of an estate that is not being probated, the person
shall pay, transfer, deliver, provide access to or allow possession of the
property to the affiant if the person would be required to pay, transfer,
deliver, provide access to or allow possession of the property to a personal
representative of the estate.

(4)
Any person that pays, transfers, delivers, provides access to or allows
possession of property of a decedent in the manner provided by this section is
discharged and released from any liability or responsibility for the property
in the same manner and with the same effect as if the property had been
transferred, delivered or paid to a personal representative of the estate of
the decedent.

(5)
A transfer agent of any corporate security registered in the name of the
decedent shall change the registered ownership on the books of the corporation
to the person entitled thereto on presentation of a certified copy of the
affidavit filed under ORS 114.515.

(6)
If a person to whom an affidavit is delivered refuses to pay, deliver,
transfer, provide access to or allow possession of any personal property as
required by this section, the property may be recovered or payment, delivery,
transfer of or access to the property may be compelled upon proof of the
transferee’s entitlement in a proceeding brought for the purpose by or on
behalf of the transferee.

(7)
If the affidavit was signed by the Director of Human Services, the Director of
the Oregon Health Authority or an attorney approved under ORS 114.517, the
Director of Human Services, the Director of the Oregon Health Authority or the
attorney may certify a copy of the affidavit for the purposes described in this
section. [1973 c.710 §4; 1979 c.340 §3; 1989 c.228 §4; 1991 c.67 §23; 1997
c.631 §404; 2003 c.196 §2; 2003 c.655 §60; 2009 c.541 §4; 2009 c.595 §80; 2009
c.828 §11; 2011 c.422 §3]

114.537
Safe deposit boxes.
(1) If a claiming successor or other person who is eligible to file an
affidavit under ORS 114.515 is aware that the decedent was the sole lessee or
the last surviving lessee of a safe deposit box at the time of the decedent’s
death, the claiming successor or other person may not file an affidavit under
ORS 114.515 until the person requests an inventory of the box under ORS
708A.655, if the lessor of the box is an Oregon operating institution as
defined in ORS 706.008, or under ORS 723.844, if the lessor of the box is a
credit union as defined in ORS 723.008. Upon receiving the request, the lessor
of the box shall cause an inventory of the contents of the box to be made. The
lessor shall retain the original inventory in the box and shall provide a copy
of the inventory to the person requesting the inventory. The person requesting
the inventory shall take the contents of the box into consideration in
determining whether the estate of the decedent is within the limits prescribed
by ORS 114.515 (2). If an affidavit under ORS 114.515 is filed by the person,
the value of the contents of the box shall be stated in the affidavit.

(2)
If a person who has filed an affidavit under ORS 114.515 becomes aware after
the filing of the affidavit that the decedent was the sole lessee or the last
surviving lessee of a safe deposit box at the time of the decedent’s death, the
person shall promptly request an inventory of the box under ORS 708A.655, if
the lessor of the box is an Oregon operating institution as defined in ORS
706.008, or under ORS 723.844, if the lessor of the box is a credit union as
defined in ORS 723.008. Upon receiving the request, the lessor of the box shall
cause an inventory of the contents of the box to be made. The lessor shall
retain the original inventory in the box and shall provide a copy of the
inventory to the person requesting the inventory. If the estate of the decedent
remains within the limits prescribed by ORS 114.515 (2) after consideration of
the value of the contents of the box, the person shall file an amended
affidavit under ORS 114.515. Upon providing the lessor of the box with a
certified copy of the amended affidavit, the lessor shall allow the person to
take possession of the contents of the box. If the estate of the decedent
exceeds the limits prescribed by ORS 114.515 (2) after consideration of the
value of the contents of the box, the person may not file an amended affidavit
under ORS 114.515 and shall file notice with the court that the estate of the
decedent is not subject to ORS 114.505 to 114.560 and shall serve a copy of the
notice on the lessor of the box. The lessor of the box shall thereafter deliver
the contents of the box to the personal representative for the decedent, or to
such other person as may be provided for under the terms of the lease of the
box. [2011 c.422 §2]

114.540
Procedure for claims; disallowance; summary determination. (1) A claim
against an estate with respect to which an affidavit is filed under ORS 114.515
may be presented to the affiant within four months after the affidavit was
filed. If an amended affidavit is filed under ORS 114.515 (7), claims against
the estate must be filed within four months after the filing of the amended
affidavit. If a supplemental affidavit is filed under ORS 114.515 (8), claims
against the estate must be filed within four months after the filing of the
supplemental affidavit. Each claim presented to the affiant must include the
information required by ORS 115.025.

(2)
A claim presented to the affiant shall be considered allowed as presented
unless within 60 days after the date of presentment of the claim the affiant
mails or delivers a notice of disallowance of the claim in whole or in part to
the claimant and any attorney for the claimant. A notice of disallowance of a
claim shall inform the claimant that the claim has been disallowed in whole or
in part and, to the extent disallowed, will be barred unless:

(a)
The claimant proceeds as provided in subsection (3) of this section; or

(b)
A personal representative is appointed within the time allowed under ORS
114.555.

(3)
A creditor of the estate whose claim has been presented within the time
permitted by subsection (1) of this section and disallowed by the affiant may
within 30 days after the date of mailing or delivery of the notice of
disallowance file with the probate court a petition for summary determination
of the claim by the court. A creditor of the decedent whose claim is listed in
the affidavit as disputed may within four months after the filing of the
affidavit file with the probate court a petition for summary determination of
the creditor’s claim by the court. The court shall hear the matter without a
jury, after notice to the creditor and affiant, and any interested person may
be heard in the proceeding. The claim may be proved as provided in ORS 115.195
(2). Upon the hearing the court shall determine the claim in a summary manner
and shall make an order allowing or disallowing the claim in whole or in part.
If the court allows the claim in whole or in part, the order shall direct the
affiant, to the extent of property of the estate allocable to the payment of
the claim pursuant to ORS 115.125, or any claiming successor to whom payment,
delivery or transfer has been made under ORS 114.505 to 114.560 as a person
entitled thereto as disclosed in the affidavit, to the extent of the value of
the property received, to pay to the creditor the amount so allowed. No appeal
may be taken from the order of the court made upon the summary determination. [1989
c.228 §7; 2003 c.523 §3; 2005 c.122 §4]

(a)
Shall take control of the property of the estate coming into the possession of
the affiant.

(b)
Within 30 days after filing the affidavit shall mail, deliver or cause to be
recorded each instrument which the affidavit states will be mailed, delivered
or recorded.

(c)
May open one or more deposit accounts in a financial institution as defined in
ORS 706.008 with funds of the decedent, upon which the affiant may withdraw
funds by means of checks, drafts or negotiable orders of withdrawal or
otherwise for the payment of claims and expenses described in paragraph (d) of
this subsection.

(d)
From and to the extent of the property of the estate, shall pay or reimburse
any person who has paid:

(A)
Expenses described in ORS 115.125 (1)(b) and (c) and listed in the affidavit;

(B)
Claims listed in the affidavit as undisputed;

(C)
Allowed claims presented to the affiant within the time permitted by ORS
114.540; and

(D)
Claims which the probate court directs the affiant to pay.

(e)
Shall pay claims and expenses under paragraph (d) of this subsection in the
order of priority prescribed by ORS 115.125.

(f)
May transfer or sell any vehicle that is part of the estate before the
completion of the period established under ORS 114.555 if the affiant complies
with the requirements established by the Department of Transportation for such
purposes under ORS 803.094.

(g)
May convey any real or personal property that is part of the estate before the
completion of the period established under ORS 114.555, provided that each heir
or devisee succeeding to the interest conveyed joins in the conveyance and that
any proceeds of sale, net of the reasonable expenses of sale and any debt
secured as of the date of the decedent’s death by a duly perfected lien on the
property, shall become a part of the estate subject to ORS 114.505 to 114.560.
If the property is a manufactured structure as defined in ORS 446.561, the
affiant must assign interest in the structure as provided in ORS 446.616. Any
conveyance to a purchaser in good faith and for a valuable consideration made
by the affiant and the heir or devisee succeeding to the interest conveyed, or
made by the heir or devisee succeeding to the interest conveyed after
completion of the period established under ORS 114.555, conveys the interest
stated in the conveyance free of any interest of the claiming successors, and
the purchaser has no duty with respect to application of the consideration paid
for the conveyance.

(2)
Notwithstanding any other provision of this section, when an heir or devisee
entitled to succeed to a conveyance fails or refuses to join in the conveyance
as required by subsection (1)(g) of this section, an affiant approved under ORS
114.517 may convey any real or personal property that is part of the estate at
any time to a third party for a valuable consideration.

(3)
Property conveyed by an affiant under this section is subject to liens and
encumbrances against the decedent or the estate of the decedent but is not
subject to rights of creditors of the decedent or liens or encumbrances against
the heirs or devisees of the decedent. The filing and allowance of a claim in a
proceeding under ORS 114.505 to 114.560 does not make the claimant a secured
creditor.

(4)
Any claiming successor to whom payment, delivery or transfer is made under ORS
114.505 to 114.560 as a person entitled thereto as disclosed in the affidavit
is personally answerable and accountable:

(a)
To the extent of the value of the property received, to creditors of the estate
to the extent such creditors are entitled to payment under subsection (1) of
this section; and

(b)
To any personal representative of the estate of the decedent thereafter
appointed.

(5)
After the expiration of the period established in subsection (1)(b) of this
section, the affiant shall cause to be recorded in the deed records of any
county in which real property belonging to the decedent is situated an affiant
or claiming successor’s deed conveying the property to persons entitled to the
property, executed in the manner required by ORS chapter 93.

(6)
For a manufactured structure as defined in ORS 446.561 belonging to a decedent
and assessed as personal property, the affiant shall file with the Department
of Consumer and Business Services the necessary information for recording the
successor’s interest in the manufactured structure on an ownership document.

(7)
A financial institution as defined in ORS 706.008 that opens one or more
deposit accounts for an affiant pursuant to subsection (1)(c) of this section
is not liable to any other person for opening the account or accounts or for
permitting the affiant to withdraw funds from the account or accounts by means
of checks, drafts, negotiable orders of withdrawal or otherwise. The financial
institution is not required to ensure that the funds of the decedent that are
paid out by the affiant are properly applied. [1973 c.710 §7; 1979 c.340 §4;
1985 c.300 §5; 1989 c.148 §6; 1989 c.228 §5; 1991 c.191 §4; 2003 c.655 §61;
2015 c.146 §1]

114.550
Summary review of administration of estate; hearing. The affiant or
any claiming successor of the estate who has not been paid the full amount owed
such claiming successor may, within two years after the filing of an affidavit
under ORS 114.515, file with the probate court a petition for summary review of
administration of the estate. A creditor may not file a petition under this
section if the creditor received a copy of an affidavit filed under ORS 114.515
delivered or mailed to such creditor within 30 days after the date the
affidavit was filed, the creditor was shown as a disputed creditor in the
affidavit, and the creditor has not filed a petition for summary determination
under ORS 114.540. The court shall hear the matter without a jury, after notice
to the claiming successor and the affiant, and any interested person may be
heard in the proceeding. Upon the hearing the court shall review administration
of the estate in a summary manner and may order the affiant to sell property of
the estate and pay creditors, to pay creditors of the estate from property of
the estate or of the affiant, or to distribute property of the estate to the
claiming successors, or may order any person who has received property of the
estate to pay amounts owed to claiming successors of the estate in whole or in
part. [1989 c.228 §8; 2003 c.196 §3]

114.552
Filing fees.
(1) A person filing a petition for summary determination under ORS 114.540 or a
petition for summary review of administration of estate under ORS 114.550, or
any other appearance in a proceeding under ORS 114.505 to 114.560, must pay the
filing fee established under ORS 21.135.

(2)
If at any time after the filing of an affidavit under ORS 114.515 a petition
for appointment of a personal representative is filed for the same estate, the
person filing the petition must pay the fees established under ORS 21.170. [2011
c.595 §25]

114.555
Effect of failure to appoint personal representative. If a personal
representative is not appointed within four months after the filing of the
affidavit authorized by ORS 114.515, the interest of the decedent in all of the
property described in the affidavit is transferred to the person or persons
shown by the affidavit to be entitled thereto, and any other claims against the
property are barred, except:

114.560
Exclusive remedy.
The exclusive remedy of a person injured by the failure of the affiant or any
claiming successor to comply with the requirements of ORS 114.505 to 114.560
shall be a summary determination under ORS 114.540, a summary review of
administration under ORS 114.550, or appointment of a personal representative
for the estate within the time allowed by ORS 114.555. [1989 c.228 §9]

ELECTIVE
SHARE FOR DECEDENTS WHO DIE ON OR AFTER JANUARY 1, 2011

(Generally)

114.600
Elective share generally. (1) If a decedent is domiciled in this state on the
decedent’s date of death, and the decedent is survived by a spouse, the
surviving spouse of the decedent may elect to receive the elective share
provided by ORS 114.600 to 114.725. An election under ORS 114.600 to 114.725
must be made before the death of the surviving spouse by the filing of a motion
or petition in the manner described in ORS 114.610. If a motion or petition is
filed within the time specified in ORS 114.610, and the surviving spouse dies
before payment of the elective share, the personal representative for the
estate of the surviving spouse may take all steps necessary to secure payment
of the elective share under ORS 114.600 to 114.725.

(2)
Any amounts received under ORS 114.015 are in addition to the elective share
provided for in ORS 114.600 to 114.725.

(3)
If a decedent dies while domiciled outside this state, any right of a surviving
spouse of the decedent to take an elective share in property in this state is
governed by the law of the decedent’s domicile at death. [2009 c.574 §2]

114.605
Amount of elective share. (1) Except as otherwise provided in ORS 114.600 to
114.725, the amount of the elective share is a dollar amount determined by
multiplying the augmented estate by the percentage provided in this section.
All properties included in the augmented estate shall be determined as provided
in ORS 114.600 to 114.725. A court of this state has authority to order
distribution under ORS 114.600 to 114.725 of all properties included in the
augmented estate under ORS 114.600 to 114.725.

(2)
The elective share of a surviving spouse is determined by the length of time
the spouse and decedent were married to each other, in accordance with the
following schedule:

114.610
Manner of making election. (1) A surviving spouse may claim the elective share
only by:

(a)
Filing a petition for the appointment of a personal representative for the
estate of the deceased spouse, and a motion for the exercise of the election as
described in paragraph (b) of this subsection, within nine months after the
spouse dies.

(b)
Filing a motion for the exercise of the election in a probate proceeding
commenced for the estate of the deceased spouse under ORS 113.035. The motion
must be filed not later than nine months after the death of the decedent. A
copy of the motion must be served on the personal representative, on all
persons who would be entitled to receive information under ORS 113.145 and on all
distributees and recipients of portions of the augmented estate known to the
surviving spouse who can be located with reasonable efforts. A surviving spouse
may withdraw a motion for an election filed under this subsection at any time
before the court enters an order granting the motion.

(c)
Filing a petition for the exercise of the election under ORS 114.720 (1) within
nine months after the death of the decedent.

(2)
If a court determines that the elective share is payable, the court shall
determine the amount of the elective share and shall order its payment pursuant
to the priorities established under ORS 114.700. If it appears that property
has not come into the possession of the personal representative, or has been
distributed by the personal representative, the court nevertheless shall fix
the liability of any person who has any interest in the property or who has
possession thereof, whether as trustee or otherwise. [2009 c.574 §4]

114.615
Payment of elective share. In determining whether any payment is required to a
surviving spouse in satisfaction of the elective share provided for in ORS
114.605, the court shall consider the values of the decedent’s probate estate,
the decedent’s nonprobate estate, the surviving spouse’s estate, the decedent’s
probate transfers to the surviving spouse and the decedent’s nonprobate
transfers to the surviving spouse. If the court determines that the aggregate
value of the surviving spouse’s estate, the decedent’s probate transfers to the
surviving spouse and the decedent’s nonprobate transfers to the surviving
spouse do not satisfy the amount of the elective share, any additional amount
required to satisfy the elective share shall be paid out of the decedent’s
probate estate and the decedent’s nonprobate estate in the manner provided by
ORS 114.700. [2009 c.574 §5]

114.620
Waiver of right to elect and other rights. (1) The right of election under
ORS 114.600 to 114.725 may be waived, wholly or partially, before or after
marriage by a written contract, agreement or waiver signed by the surviving
spouse.

(2)
Unless specifically provided otherwise, a written agreement that waives all
rights in the property or estate of a present or prospective spouse, using the
phrase “all rights” or other equivalent language, or a complete property
settlement entered into after or in anticipation of separation or divorce is a
waiver of all rights to an elective share under ORS 114.600 to 114.725 by each
spouse in the property of the other and a renunciation by each of all benefits
that would otherwise pass to each spouse from the other by intestate succession
or by virtue of any will executed before the written agreement or property
settlement. [2009 c.574 §6]

Note: Section 24,
chapter 574, Oregon Laws 2009, provides:

Sec.
24.
A written contract, agreement or waiver entered into before the effective date
of this 2009 Act [January 1, 2011], whether prenuptial or post-nuptial, that
waives in whole or in part the elective share of a surviving spouse is
effective as a waiver under section 6 of this 2009 Act [114.620] unless a court
determines that the contract, agreement or waiver is not enforceable under the
standards of section 6 of this 2009 Act. Section 6 (2) of this 2009 Act applies
to contracts, agreements or waivers entered into before, on or after the
effective date of this 2009 Act. [2009 c.574 §24]

114.625
Who may exercise right of election. The elective share may be personally
claimed by a surviving spouse, or may be claimed on the surviving spouse’s
behalf by a conservator, guardian or agent under the authority of a power of
attorney. [2009 c.574 §7]

(Augmented
Estate)

114.630
Augmented estate.
(1) Except as otherwise provided in ORS 114.600 to 114.725, the augmented
estate consists of all of the following property, whether real or personal,
movable or immovable, or tangible or intangible, wherever situated:

(a)
The decedent’s probate estate as described in ORS 114.650.

(b)
The decedent’s nonprobate estate as described in ORS 114.660 and 114.665.

(c)
The surviving spouse’s estate, as described in ORS 114.675.

(2)
The value attributable to any property included in the augmented estate under
ORS 114.600 to 114.725 must be reduced by the amount of all enforceable claims
against the property and all encumbrances on the property. Any exemption or
deduction that is allowed for the purpose of determining estate taxes on the
augmented estate and that is attributable to the marriage of the decedent and
the surviving spouse inures to the benefit of the surviving spouse as provided in
ORS 116.343 (2).

(3)
The value attributable to any property included in the augmented estate
includes the present value of any present or future interest and the present
value of amounts payable under any trust, life insurance settlement option,
annuity contract, public or private pension, disability compensation, death
benefit or retirement plan, or any similar arrangement, exclusive of the
federal Social Security Act.

(4)
The value attributable to property included in the augmented estate is equal to
the value that would be used for purposes of federal estate and gift tax laws
if the property had passed without consideration to an unrelated person on the
date that the value of the property is determined for the purposes of ORS
114.600 to 114.725.

(5)
In no event may the value of property be included in the augmented estate more
than once. [2009 c.574 §8; 2011 c.305 §4; 2017 c.169 §26]

114.635
Exclusions from augmented estate. The augmented estate does not include:

(1)
Any value attributable to future enhanced earning capacity of either spouse;

(2)
Any property that is irrevocably transferred before the death of the decedent
spouse;

(3)
Any property that is transferred on or after the date of the death of the
decedent spouse with the written joinder or written consent of the surviving
spouse;

(4)
Any property that is community property under ORS 112.705 to 112.775 or under
the laws of the jurisdiction where the property is located; or

(5)
Any property that is held by either spouse solely in a fiduciary capacity. [2009
c.574 §9; 2011 c.305 §1]

(Decedent’s
Probate Estate)

114.650
Decedent’s probate estate. For purposes of ORS 114.600 to 114.725, a decedent’s
probate estate is the value of all estate property that is subject to probate
and that is available for distribution after payment of claims and expenses of
administration. A decedent’s probate estate includes all property that could be
administered under a small estate affidavit pursuant to ORS 114.505 to 114.560.
A decedent’s probate estate does not include any property that constitutes a
probate transfer to the decedent’s surviving spouse under ORS 114.685. [2009
c.574 §10]

(Decedent’s
Nonprobate Estate)

114.660
Decedent’s nonprobate estate. For purposes of ORS 114.600 to 114.725, a
decedent’s nonprobate estate consists of the property described in ORS 114.665
that is not included in the decedent’s probate estate and that does not
constitute a transfer to the decedent’s surviving spouse. The value of the
decedent’s nonprobate estate is reduced by all debts and liabilities of the
decedent that are not paid in probate, and by all costs of administering the
decedent’s nonprobate estate that are incurred for the purpose of settling
claims against the nonprobate estate and distributing the nonprobate estate
property to the persons entitled to that property. [2009 c.574 §11; 2011 c.305 §2]

114.665
Decedent’s nonprobate estate; property owned immediately before death. (1) A decedent’s
nonprobate estate includes the decedent’s fractional interest in property held
by the decedent in any form of survivorship tenancy immediately before the
death of the decedent. The amount included in the decedent’s nonprobate estate
under the provisions of this subsection is the value of the decedent’s
fractional interest, to the extent the fractional interest passes by right of
survivorship at the decedent’s death to a surviving tenant other than the
decedent’s surviving spouse.

(2)
A decedent’s nonprobate estate includes the decedent’s ownership interest in
property or accounts held immediately before death under a payable on death
designation or deed, under a transfer on death registration or in co-ownership
registration with a right of survivorship. The amount included in the decedent’s
nonprobate estate under the provisions of this subsection is the value of the
decedent’s ownership interest, to the extent the decedent’s ownership interest
passed at the decedent’s death to any person other than the decedent’s estate
or surviving spouse or for the benefit of any person other than the decedent’s
estate or surviving spouse.

(3)
A decedent’s nonprobate estate includes any property owned by the decedent
immediately before death for which the decedent had the power to designate a
beneficiary, but only to the extent that the decedent could have designated the
decedent, or the spouse of the decedent, as the beneficiary.

(4)
A decedent’s nonprobate estate includes any property that immediately before
death the decedent could have acquired by the exercise of a revocation, without
regard to whether the revocation was required to be made by the decedent alone
or in conjunction with other persons.

(5)
A decedent’s nonprobate estate does not include the present value of any life
insurance policy payable on the death of the decedent. [2009 c.574 §12; 2011
c.305 §3]

(a)
The decedent’s probate transfers to the spouse, as described in ORS 114.685.

(b)
The decedent’s nonprobate transfers to the spouse, as described in ORS 114.690.

(c)
All other property of the spouse, as determined on the date of the decedent’s
death.

(d)
Any property that would have been included under paragraph (a), (b) or (c) of
this subsection except for the exercise of a disclaimer by the spouse after the
death of the decedent.

(2)(a)
For the purpose of establishing the value of the surviving spouse’s estate
under this section, the estate includes 100 percent of the corpus of any trust
or portion of a trust from which all income must be distributed to or for the
benefit of the surviving spouse during the life of the surviving spouse, and
for which the surviving spouse has a general power of appointment that the
surviving spouse, acting alone, may exercise, during the surviving spouse’s
lifetime or at death of the surviving spouse, to or for the benefit of the
surviving spouse or the surviving spouse’s estate.

(b)
For the purpose of establishing the value of the surviving spouse’s estate
under this section, the estate includes 100 percent of the corpus of a trust or
portion of a trust created by the decedent spouse, if all income from the trust
or portion of a trust must be distributed to or for the benefit of the
surviving spouse during the life of the surviving spouse and the trust
principal may be accessed only by the trustee or the spouse and only for the
purpose of providing for the health, education, support or maintenance of the
spouse.

(c)
For the purpose of establishing the value of the surviving spouse’s estate
under this section, the estate includes 50 percent of the corpus of a trust or
portion of a trust created by the decedent spouse if all income from the trust
or portion of a trust must be distributed to or for the benefit of the
surviving spouse during the life of the surviving spouse and neither the
trustee nor the spouse has the power to distribute trust principal to or for
the benefit of the surviving spouse or any other person during the spouse’s
lifetime.

(d)
For the purposes of this section, all amounts distributed to a surviving spouse
from a unitrust that meets the requirements of ORS 129.225 (4) shall be
considered income.

(e)
The value of the surviving spouse’s beneficial interest in a trust other than a
trust described in paragraphs (a) to (d) of this subsection shall be determined
under the provisions of ORS 114.630 (3) and (4). [2009 c.574 §13; 2011 c.305 §5]

(Decedent’s
Probate Transfers to Spouse)

114.685
Decedent’s probate transfers to surviving spouse. The decedent’s
probate transfers to the decedent’s surviving spouse include all estate
property that is subject to probate, that passes to the surviving spouse by
testate or intestate succession, and that is available for distribution to the
surviving spouse after payment of claims and expenses of administration. [2009
c.574 §14]

(Decedent’s
Nonprobate Transfers to Spouse)

114.690
Decedent’s nonprobate transfers to surviving spouse. (1) Except as
provided in subsection (2) of this section, the decedent’s nonprobate transfers
to the decedent’s surviving spouse include all property that passed outside
probate at the decedent’s death from the decedent to the surviving spouse by
reason of the decedent’s death, including:

(a)
The decedent’s fractional interest in property held in any form of survivorship
tenancy, as described in ORS 114.665 (1), to the extent that the decedent’s
fractional interest passed to the surviving spouse as surviving tenant;

(b)
The decedent’s ownership interest in property or accounts held in co-ownership
registration with the right of survivorship, to the extent that the decedent’s
ownership interest passed to the surviving spouse as surviving co-owner;

(c)
Insurance proceeds payable to the surviving spouse by reason of the death of
the decedent; and

(d)
All other property that would have been included in the decedent’s nonprobate
estate under ORS 114.660 and 114.665 had it passed to or for the benefit of a
person other than the decedent’s spouse.

(2)
The decedent’s nonprobate transfers to the decedent’s surviving spouse do not
include any property passing to the surviving spouse under the federal Social
Security Act. [2009 c.574 §15]

(Payment
of Elective Share)

114.700
Priority of sources from which elective share payable. (1) The surviving
spouse’s estate, as described in ORS 114.675, shall be applied first to satisfy
the dollar amount of the elective share and to reduce or eliminate any
contributions due from the decedent’s probate estate and recipients of the
decedent’s nonprobate transfers to others.

(2)
If after application of the surviving spouse’s estate under subsection (1) of
this section the elective share amount is not fully satisfied, the following
amounts shall be applied to the extent necessary to satisfy the balance of the
elective share amount:

(a)
Amounts included in the decedent’s probate estate.

(b)
Amounts included in the decedent’s nonprobate estate under ORS 114.600 to
114.725.

(3)
Unless otherwise provided by a will, trust or other instrument executed by the
decedent spouse:

(a)
Amounts applied against the unsatisfied balance of an elective share amount
under subsection (2) of this section shall be collected from both the probate
and nonprobate estates of the decedent in a manner that ensures that the
probate and nonprobate estates bear proportionate liability for the amounts
necessary to pay the elective share amount.

(b)
Amounts applied against the unsatisfied balance of an elective share amount
under subsection (2) of this section out of the probate estate of the decedent
must be apportioned among all recipients of the decedent’s probate estate in a
manner that ensures that each recipient bears liability for a portion of the
payment that is proportionate to the recipient’s interest in the decedent’s
probate estate.

(c)
Amounts applied against the unsatisfied balance of an elective share amount
under subsection (2) of this section out of the nonprobate estate of the
decedent must be apportioned among all recipients of the decedent’s nonprobate
estate in a manner that ensures that each recipient bears liability for a
portion of the payment that is proportionate to the recipient’s interest in the
decedent’s nonprobate estate.

(4)
All apportionments under this section between the probate and nonprobate
estates of the decedent and among the recipients of those estates shall be
based on the assets of each estate that are subject to distribution by the
court under the provisions of ORS 114.600 to 114.725.

(5)
In any proceeding described in ORS 114.610, the court may allocate the cost of
storing and maintaining property included in the augmented estate pending
distribution of the property. [2009 c.574 §16; 2011 c.305 §6]

114.705
Liability of recipients of decedent’s nonprobate estate. (1) The following
recipients of the decedent’s nonprobate estate are the only persons who may be
required to make a proportional contribution toward the satisfaction of the
surviving spouse’s elective share under the provisions of ORS 114.600 to
114.725:

(a)
An original recipient of all or part of the decedent’s nonprobate estate.

(b)
A person who has received all or part of the decedent’s nonprobate estate for
less than fair consideration from an original recipient of the property, to the
extent the person has the property or proceeds of the property.

(2)
A recipient of all or part of the decedent’s nonprobate estate who is required
to make a proportional contribution toward the satisfaction of the surviving
spouse’s elective share may elect to make the contribution by returning
property determined to be adequate to satisfy the recipient’s obligation or by
paying money equal to the value of that property. [2009 c.574 §17]

114.710
Protective order.
(1) If a surviving spouse has filed a motion or petition described in ORS
114.610, the surviving spouse or any person who has received any part of the
decedent’s probate or nonprobate estate may request, at any time after the
filing, that the court issue a protective order. The protective order shall
prohibit or impose conditions on the transfer of property included in the
augmented estate. The protective order may be served on any person holding
property included in the augmented estate.

(2)
Upon the filing of a motion or petition under ORS 114.610, any person who has
received any part of the decedent’s probate or nonprobate estate and who is
required to make a contribution toward the satisfaction of the elective share
may file a motion or petition with the court requesting a determination of the
amount of the person’s proportionate contribution toward the satisfaction of
the elective share. Upon that determination being made, the person may deposit
with the court the amount so determined in the form of money or a bond or other
security. The deposit discharges the person from all claims relating to the
satisfaction of the elective share. In lieu of deposit with the court under
this subsection the court may require that the money or security be deposited
with a person designated by the court.

(3)
If a surviving spouse has filed a motion or petition described in ORS 114.610,
and a notice of pendency of action under ORS 93.740 is recorded, a temporary
restraining order is issued under ORCP 79, or provisional process is issued
under ORCP 83, an owner of the property that is subject to the notice, order or
process may seek relief from the notice, order or process by providing a bond
or other security to the court in such amount as the court may determine
adequate to satisfy the person’s proportionate contribution toward the satisfaction
of the elective share. [2009 c.574 §18]

(Procedure)

114.720
Proceedings to claim elective share. (1) A surviving spouse may claim the
elective share by filing a petition for the exercise of the election in a
circuit court within the time allowed by ORS 114.610 (1)(c). Venue for the
proceeding is as provided in ORS 113.015. A copy of the petition must be served
on all persons who would be entitled to receive information under ORS 113.145
and on all distributees and recipients of portions of the augmented estate
known to the surviving spouse who can be located with reasonable efforts. The
fee for filing a petition under this subsection shall be the amount prescribed
in ORS 21.170, based on the value of the nonprobate estate. The Oregon Rules of
Civil Procedure apply to proceedings under this section. Any party to a
proceeding under this section may request that the pleadings and records in the
proceeding be sealed.

(2)
A surviving spouse may withdraw a petition filed under this section at any time
before entry of a judgment on the petition.

(3)
If a probate proceeding is commenced for the estate of the deceased spouse
under ORS 113.035 either before or after a petition is filed under this
section, the court shall consolidate the proceedings under this section with
the probate proceedings. [2009 c.574 §19; 2011 c.595 §125]

114.725
Effect of separation.
If the decedent and the surviving spouse were living apart at the time of the
decedent’s death, whether or not there was a judgment of legal separation, the
court may deny any right to an elective share or may reduce the elective share
to such amount as the court determines reasonable and proper. In deciding if
all or part of the elective share should be denied, the court shall consider
whether the marriage was a first or subsequent marriage for either or both of
the spouses, the contribution of the surviving spouse to the property of the
decedent in the form of services or transfers of property, the length and cause
of the separation and any other relevant circumstances. [2009 c.574 §20]